Contractual autonomy between internal and ecological dimension in Italy
Gianluigi Passarelli, Assegnista di Ricerca – Università Roma 5 San Raffaele
The recent amendment of Articles 9 and 41 of the Italian Constitution requires the Italian civil law scholars to reflect on the effects that it would have on a number of contract law principles.
This essay, starting from the analysis of the path that led to the aforementioned desired reform, attempts to understand whether the fact that an environment elevated to protect primary value creates limits to the contractual autonomy and at the same time if it increases the discretion of the judge in his delicate role of interpreting the contract and balancing the underlying interests (including third parties).
The investigation, after an analysis of some theories created across the border from that of German origin of the Drittwirkung, concludes with the elaboration of diverse solutions.
Keywords: Environment – Italian Constitutional revision – Parties autonomy – Ecological contract.
La recente modifica degli artt. 9 e 41 Cost. impone, anche al civilista, di riflettere sugli effetti della riforma sul diritto dei contratti.
Il saggio, partendo dalla analisi del percorso che ha condotto alla predetta auspicata riforma, tenta di comprendere se l’inserimento della tutela dell’ambiente tra i principi fondamentali crei, di fatto, dei limiti alla autonomia contrattuale e se tale modifica aumenta il potere discrezionale del giudice nel suo delicato ruolo di interpretazione del contratto e del bilanciamento degli interessi (anche di terzi) sottesi.
L’indagine, dopo aver analizzato anche alcune teorie nate oltreconfine a partire da quella nata nell’esperienza tedesca del Drittwirkung, si conclude con l’elaborazione di differenti soluzioni.
Parole chiave: Ambiente – Modifica costituzionale – Autonomia contrattuale – Contratto ecologico.
1. The evolution of the path toward the environmental legal protection - 2. On the identification of legal positions related to the environment - 3. Environmental protection and corporate rights between reasonableness and proportionality - 4. Content analysis of the “environmental contract” - 5. Ecological contract and possible “trilateral relationship” between all interests involved in the contract - 6. Concluding remarks - NOTE
1. The evolution of the path toward the environmental legal protection
In the face of growing pollution and increasingly frequent ecological disasters, environmental protection has become an imperative challenge for the global community and, in turn, to national legal frameworks all over the world . Within this scenario, Italian legislation has undergone a serious process of revision, in light of the increasing amount of damage caused by pollution and climate change, which is a phenomenon that knows no geographical boundaries and calls inevitably upon various sectors of the internal system. Therefore, this study will examine the direction of the process of constitutional revision as well as the effects on some private law principles. It is my contention that in order to understand the constitutional framework in Italy is important to point out, as will be outlined infra, that until 2022, in the Italian Fundamental Charter there were no specific and direct provisions that mentioned the ‘environment’ either as an asset, or as a value worthy of protection. Furthermore, this issue was only partially adopted by the legal doctrine . On this premise, in the Italian legal system the right to environmental protection emerged only in connection with ownership and the discipline of immissiones in alienum, pursuant to art. 844 of the civil code . Therefore, the criterion for establishing active legitimacy was identified only in the vicinitas with respect to a polluting source . Overall, the notion of environment has been characterized by the opposing legal doctrine positions that have distinguished two strands of thought. On one hand, the “pluralistic” thesis (called “pluralistica”)  according to which the notion of the environment, and its protection, was essentially based on a plurality of interests such as landscape protection, territorial governance and protection against pollution. On the other hand, the “monist” thesis (“monista”)  which assumes the uniqueness of the asset; in summary, the protected asset is unique from which at the most a subjective protection aspect can be identified, deriving from Articles 2 and 32 of the Italian Constitution, and an objective one deriving from its art. 9 co. 2. In this regard, in the Italian Fundamental Charter there were no specific and clear provisions that mentioned the ‘environment’ as an asset or as a value worth of protection although in 2001, the concept of [continua ..]
2. On the identification of legal positions related to the environment
After these considerations on recent Constitutional reform, I believe that nowadays the contract law scholars cannot ignore issues of environmental protection after these constitutional advancements. But exactly for these reasons we must start to consider the delicate relationship between the protection of human beings and the environment; in other words, it is necessary to identify the owners of those who protect the environment. To amplify this concept, we must begin with the perception that some scholars hold of the “right to the environment”. In particular, according to some Italian scholars it is a «formula evocativa di una rosa di situazioni soggettive diversamente strutturate e protette»  or better a «fascio di rapporti giuridici» . Starting from these considerations, the legal positions under review have, over the years, been subjected to the analysis of some case law. In fact, the jurisprudence has established both the existence of a subjective right but above all the normative references of the Constitution connected to the aforementioned subjective right, namely Articles 32 and 42 of the Constitution. More precisely, it refers to two decisions of the Corte di Cassazione  which were then taken up by the Corte Costituzionale  in the section which the fundamental right of the individual to environmental protection is emphasized. On this point, it is important to note that there is no ruling or close correlation between the environment and the position of the subject, but only a connection with the right to health is emphasized. In fact, the legal position is often referred through the term «diritto ad un ambiente salubre». On the other hand, it should not be overlooked that jurisprudence hold that subjective law should be interpreted in a triple dimension, namely: personal, social and public. In fact, according to the case law, that was decreed before the recent Costitutional reform, “[…] la stessa configurabilità del bene-ambiente e la risarcibilità del danno ambientale, pur specificamente regolato dalla L. n. 349 del 1986, art. 18, trovano “la fonte genetica direttamente nella Costituzione, considerata dinamicamente e come diritto vigente e vivente, attraverso il combinato disposto di quelle disposizioni (artt. 2, 3, 9, 41 e 42) che concernono l’individuo e la collettività nel suo habitat economico, sociale e [continua ..]
3. Environmental protection and corporate rights between reasonableness and proportionality
As previously noted, a Public Administrator in the exercise of his duties has the task of balancing the interests involved, therefore matching the protection of the environment with the rights of the entrepreneur. Therefore, the public administration should make its choices in accordance with the reasonableness and proportionality criteria. In theory, the setting of limits on the exercise of entrepreneurial activity must be bound by the correlation of these limitations to social utility, in the sphere of which health and the environment are unquestionably identified. From the point of view of the balance between interests involved, it should not be overlooked that the Italian Corte di Cassazione has established the separation line between environmental protection and corporate rights. Practically the criterion of reasonableness must be used to ascertain whether or not the limiting norms of the other fundamental rights are reasonable in consideration of the environmental value. Starting from these premises, it is a question of understanding whether the environmental value examined together with the other interest’s worthy of protection, entails, in regard to the latter, what I would like to define as “homeopathic compression”. Such compression would be legitimate when it is reasonable and proportionate with respect to the ecological protection objectives to be realized. The point just mentioned came from the view that public interest always prevails over private interests, since the former aim is to satisfy general interests. Indeed, the environmental interest, although prevailing, meets the limit of definitive non-compression of other rights. In this contest, some scholar argues persuasively that “i diritti costituzionali si ergono a difesa della libertà del singolo dallo Stato, sia riconoscendo un àmbito inattingibile al potere della mano pubblica, sia imponendo alla stessa obblighi positivi o negativi di prestazione” . At this point it is important to recall the issue of the so-called “green clauses” to which reference is made when the public entity, according to reasonableness and proportionality, indicates the aforementioned clauses among the criteria for awarding a tender. The aim being to identify entrepreneurs who can offer eco-efficient products and services, thus ensuring an ecologically virtuous management of purchases and public works . On this point, it is important [continua ..]
4. Content analysis of the “environmental contract”
But despite this fundamental assertion on the Constitutional revision, it is emerged the need to investigate the topic of the environment from a civil law point of view. Effectively, the protection of the third party, the possibility of providing remedies to protect the environment and, at the same time, if these remedies protect the legal sphere of third-party rights as well as any compensation for damage that they have suffered. In essence, it is necessary to consider precisely the role that, in the context of environmental management, private law, with its tools can undertake and at the same time the concrete contribution it can provide on these issues. In theory, if it were agreed to integrate the set of fundamental remedies suitable for countering the new forms of damage to the environment, it appears clear that the subtle relationships existing between private law and environmental law can, in reality, be framed as double-sided. In other words, assuming that private law is increasingly flexible over sensitive issues and those issues related to ecology, it seems necessary to include some civil law principles. In practice, adopting this approach would involve a double observation in reference to two fundamental concepts: environmental solidarity, which can be derived from art. 2 of the Constitution and the concept of sustainable development . To establish ideas for purposes of exploring this point, it is necessary to start from the contract’s concept which is traditionally characterized by an economic setting and nature and as a consequence aims to regulate the (private) interests of the contracting parties. In reality, it would be necessary to disengage (if we are thinking about the environmental topic and the role of the contract in this context) from this approach in order to reach a vision of the contract in which environment and market can be “merged”. In this regard, the relationship between the environment and the contract becomes significant as this allows us to go beyond the conception of the agreement pursuant to art. 1372 of the Italian civil code which is intended as an instrument producing effects exclusively between the contracting parties. On this point , it appears important to concentrate on some Italian doctrine that assumes that is necessary to interpret the behaviour of the parties in the context of the contract, as well as the point that no contractual relationship can be qualified as [continua ..]
5. Ecological contract and possible “trilateral relationship” between all interests involved in the contract
From the above observations the discussion should be carried out by asking, in a preliminary way, about the possibility or not of giving priority to the positions of the contracting parties within the dynamics of the aforementioned “ecological contract” with respect to the environment. Therefore, the question to be answered is whether environmental protection can weaken in the presence of the interests of the contractual parties and their “Supreme Will” . The observations regarding the position of the holders of common interests in environmental matters, start from the recognition of such subjects of a legitimate interest, understood as an advantageous position that is achieved based on the actions of the Public Administration. Therefore, legitimate interest also receives recognition in the collective context in which the subject operates and carries out from his or her personality. Precisely by virtue of this consecration certain juridical situations arose no longer registered to the individual subject but, vice versa, to the entire community connected by the common interest to the good of life. In essence, recognition was given to those interests defined as “widespread” that is a collective interest without owner but common to all citizens belonging to a disorganized social formation (otherwise we would speak of collective or category rights) and not identified independently. Starting from these observations, it is important to note that it is precisely the environmental sector that experienced the first forms of development of these collective interests, allowing entities the legitimatio ad causam in addition to the possibility of intervening in judgments for environmental damage . It follows that the theoretical foundation of the legitimacy of the holders of widespread interests, is in the interests referable to a more or less broad community of subjects (consumers, users, etc.). Therefore, the fact that the care of the general public interest (e.g. the environment) is left to the Public Administration does not mean that it cannot be referred indiscriminately to entities and that the latter represent the actual users of the common good . To better understand this issue, it is necessary first to clarify the subjective legal positions that are identified in the principal three subjects: private (entrepreneur), public administration and citizens. Add to this the case of two private [continua ..]
6. Concluding remarks
It is reasonable to conclude, on the basis of the circumstance that the ecological contract has not yet been regulated by law nor can we already speak of a separate regulatory contract category. It is believed that the relationship between the environment and the contract would lead the latter to be no longer understood in its traditional form but as a “resource” in primis of the contractual parties and then of the community. However even though this current argument enjoys support in legal academia, there are a few additional proposals on the legal remedies in the case of violation of environmental protection rules . Certainly, the classical legal remedies as (restitutionary and compensation damages) can be applied. One thing these remedies have in common is their reaction to a violation of the rules by others. In particular, they can be felt in the phase following the verification of the lesion and aim, as it is well known, to restore the harmful effects deriving from the violations created. In addition to these classical remedies there are other specific solutions for the environmental issues as, for example, the Directive 2004/35/CE that maintains that on the basis of the ‘polluter-pays’principle, an operator causing environmental damage or creating an imminent threat of such damage should, in principle, bear the cost of the necessary preventive or remedial measures . In summary, the precautionary, corrective, sustainable development as well as the “polluter-pays” principles are all essential elements of environmental protection  and are merged into the Italian regulatory framework that we find within the Codice dell’Ambiente . In this respect, I want to stress, however, that between the above-mentioned principles that are different from each other, in the environmental context that of “precaution” plays a central role when compared to the others because its ratio is to avoid damage . Therefore, the protection of the environment already applies where there is a “risk” that the environmental good may be compromised. As a consequence, the authorities may adopt measures aimed at preventing any risks to the environment  with advance protection  but only if there is a scientific evidence that the environment is at risk . In essence, from the above observation a few conclusions can be drawn. The first is that the [continua ..]